Two Plus Two Is Five

Expert witness says several scenes in rape video prove Jane Doe was enjoying the sex, could do math

Photo courtesy pool photographer
Mark Boster, LA TimesIn Orange County's high-profile Haidl trial, conventional wisdom says Joe Cavallo is a liability. Cavallo represents the three defendants accused of videotaping themselves raping and molesting an unconscious 16-year-old. They point to the fact that Cavallo described prosecutor Dan Hess as "sleazy," but himself asked a female witness if a penis is bigger than a pool cue—implying that, for most women, one would be as good as another--and insisted that Jane Doe, the alleged victim, was a "slut" who got what she deserved. Twice outside the presence of the jury, Superior Court Judge Francisco Briseño has slammed Cavallo's tactics.

But in a case that has produced more twists than a daytime soap, it's possible the thug may become the hero--at least to Greg Haidl, Keith Spann, Kyle Nachreiner and their worried families. Some court observers believe the defense is poised to win the case as it enters its final week of testimony. If there are acquittals, the roots of victory can be traced back to Cavallo's clever work on June 8.

Using the testimony of UCLA neurologist Dr. H. Ronald Fisk, Cavallo seemingly rocked the centerpiece of the prosecution's case: that after the three defendants gave Doe alcohol and illegal drugs at a late-night July 2002 party in Newport Beach, Doe was either unconscious or so intoxicated that she could not resist or consent to an orgy.

Fisk said there are four levels of consciousness: alertness, lethargic, stupor and coma. In his opinion, Doe never fell below lethargic and "had an almost full range of [mental and physical] capabilities, but just slower." Fisk said someone in a stupor "appears to be totally unaware and non-responsive."

Abandoning his usual hamfistedness, Cavallo was suddenly deft, guiding Fisk through Exhibit X, the defense team's redacted version of Haidl's 21-minute porno. According to the doctor, the exhibit contains 11 brief scenes in which Doe was "doing things that reflect a level of alertness." Jurors looked to Cavallo, who stood beside the Haidl-supplied 50-inch plasma television with a pointer while Fisk described Doe's movements:

At 1:40:16 a.m. and again at 1:40:27 on the tape, Doe lifted her head while Spann entered her from behind; at 1:45:19 and 1:45:46, Doe "brushed her hair" out of her face with her hands; at 1:46:09, she lifted her hands to the sides of Spann; at 1:46:22, she made a "controlled movement" of her arms; at 1:56:09, she lifted her hands to her face and then touched her stomach; at 2:04:36, she "bent her right leg in defiance of gravity"; at 2:04:53 and 2:06:09, Doe, who was positioned on a pool table, again adjusted her leg and slid her pelvis toward the defendants as they inserted a pool cue into her vagina; and at 2:07:58, near the end of the film, she "started to turn" her body.

With thin white hair combed over his scalp, Fisk resembled the loony inventor in Michael J. Fox's Back to the Future. Nonetheless, the doctor (whom the defense paid a $3,500 fee, plus $750 per hour) riveted the jury. Many jurors scribbled in their notebooks after Cavallo repeatedly asked Fisk the same question, eliciting different forms of the same response. "Clearly, she is not in a stupor," Fisk said, looking directly at jurors. "She appears to be at a lower level of consciousness than she [really] is."

Silence filled the courtroom. For the first time, the defense had an expert to support its contention that Doe may have faked unconsciousness.

It's impossible to know what jurors are thinking, but two female jurors whom the defense team has feared were hostile to their case looked at each other, raised their eyebrows and slightly shook their heads sideways. A reporter covering the trial was clearer: "That's reasonable doubt," the reporter said. "This case should be over."

Outside in the hallway during a break, a giddy Cavallo took Fisk to the courthouse cafeteria for refreshments.

It's easy to underestimate Hess, the tall, soft-spoken prosecutor. Cavallo and his colleagues, Peter Scalisi and John Barnett, routinely talk over one another in the course of windy speeches accentuated with finger-jabbing at the deputy DA and Newport Beach Detective John Hougan, the man who headed the rape investigation. Hess always awaits Briseño's permission to speak and is almost invariably polite.

But the 14-year veteran knew the importance of Fisk's testimony: if jurors believe Doe was alert during the gangbang, his case of rape by intoxication is doomed.

Like Cavallo, Hess abandoned his usual approach when he got the neurologist for cross-examination.

It's not clear jurors were paying attention; some yawned and one looked over his shoulder to a wall clock as if ready for lunch. If jurors missed the cross-examination, here's the summary: Hess ripped holes in Fisk's testimony. An hour later, the doctor had reluctantly admitted he'd consulted with the defense on what language to use to describe Doe's state of mind; that that language "exactly matched" a jury instruction that will aid the defense; that he'd ignored most of the scenes in the video that may have shown that Doe was knocked-out and unresponsive to pain; that it's possible Doe could have fallen in and out of stupor because of the beer, marijuana and eight-ounce glass of Bombay Gin she'd been given by the defendants; that drug and alcohol intoxication are the most common causes of a stupor; and that the redacted scenes used for Exhibit X could have been taken out of context. "I was careful in the scenes I've included," conceded Fisk, whose medical testimony helped free Bill Clinton Whitewater-scandal associate Susan McDougal early from prison in 1998.

Despite his admissions, the doctor refused to abandon his opinion that Doe's occasional movements proved she was conscious. Hess tried a different tack. He asked why, for example, the girl didn't flinch when the defendants violently slapped her buttocks; shoved a pool cue in her vagina and rectum; and twisted, pulled and yanked on her nipples. Fisk said he "can't tell" if the slapping, shoving, twisting and pulling caused pain, "and that's why I didn't include that" on Exhibit X. Hess noted how far the breast had been "stretched upward," but Fisk said he guessed it was painless. Hess asked Fisk to assume for the moment that the nipple play was painful. If so, Hess asked, would Doe's failure to respond indicate stupor. Fisk seemed annoyed and said, "Correct."

Hess wasn't done. He cleverly prompted Fisk to remind jurors of his pro-defense bias by asking if all the alcohol and drugs given to Doe would have affected her ability to respond. All Fisk would say was, "It could."

But the case hinges on whether Doe was so intoxicated that she couldn't resist. Earlier with Cavallo, Fisk dramatically claimed that the girl had been so "close" to alert that she would have been able to solve math problems during the gangbang. It was memorable evidence for jurors if true. So Hess reminded him of a graphic scene, the one in which Doe was the focal point of the defendant's sexual force but as limp and unresponsive as a rag doll.

"At that point, is she able to do math?" an incredulous Hess asked. Fisk shrugged his shoulders. "The answer is obviously difficult," he said. "Maybe not."

RSCOTTMOXLEY@OCWEEKLY.COM.

Tales of the Haidl Gang Bang
A closer look at the defense's Exhibit X

1:40:16 and 1:40:27 a.m.

Fisk Claim: Demonstrating she is alert and "in control," 16-year-old alleged rape victim Jane Doe lifted her head twice.

Context: Defendants Greg Haidl, Keith Spann and Kyle Nachreiner have already stripped a heavily intoxicated-looking Doe. Her knees are on the floor, and her pants are at her ankles; Spann is behind her, having intercourse. Nachreiner is sitting on the wicker sofa and using his hands to hold Doe's head at his groin for oral sex. Doe's head lifts up slightly twice, but it falls facedown immediately on Nachreiner's hip. Her head stays there until Nachreiner grabs her by hair. Haidl, who is directing, comes from behind the camera and slaps Doe's buttock hard. She shows no reaction.

1:45:19 and 1:45:46

Fisk Claim: Doe brushed her hair out of her face.

Context: Nachreiner is trying to get oral pleasure and said to Spann, who is still having intercourse with Doe, "Yes! Right there! Right there! . . . Keep her with the fucking lips . . . You're making her eat my fucking dick off, dude. . . . Come on! Fuck that shit!" There's a close-up of Nachreiner's face and chest, and he says to Spann, "Let's switch 'em up now." Spann asks, "You think so?" Nachreiner: "Yeah, let's sit her down." Nachreiner grabs under Doe's armpits twice but can't get control of her floppy body. The second time, Doe's hands move toward her head, and her body falls forward and swivels. Nachreiner moves Doe back on top of himself and holds her there while Spann, who is standing, tries repeatedly to insert his penis in Doe's mouth. Her head wobbles on her shoulders like a newborn baby.

1:46:09 and 1:46:22

Fisk Claim: Doe ran her hands along the sides of Spann and moved an arm.

Context: The sex continues, and Nachreiner is still holding onto Doe. Doe's right hand moves in the direction of Spann's hip as he's pulling her closer. She leans in his direction. Haidl grabs Doe's hair to keep her head from wobbling. When he lets go, her head snaps back, and she falls face-first on the couch. An unknown defendants asks, "You done?" Haidl asks, "Do you want me to take your spot now, Nach?" Doe falls into Spann's arms when there's no one holding her. The defendants lift her again and try to get oral sex once more. She has the rigidity of a rag doll.

1:56:09

Fisk Claim: Doe lifted her hands.

Context: After the couch scene, Haidl takes a close-up shot of Doe's vagina and anus. The defendants have tossed her on the garage pool table. Her eyes are closed, and her head is lying on the hard edge of the table. She looks asleep while Spann has intercourse with her. Haidl's roving camera work reveals no facial expression on Doe, whose arms flop around momentarily. Spann ejaculates on her stomach. He wipes his penis with her bra and then tosses it to the floor.

 

2:04:36 and 2:04:53

Fisk Claim: Doe bent her leg, slid voluntarily toward a defendant and has positioned her genital area for the defendants.

Context: The defendants positioned Doe so her legs are open and her vagina exposed. For nearly two and a half minutes, Haidl repeatedly penetrates (in fast and twisting motions) her vagina with a Snapple bottle. A laughing Haidl turns to the camera and mugs. The defendants make what looks like gang signs with their hands, laugh and dance around as rap music blares. Haidl helps Nachreiner shove a Tree Top apple juice can into Doe's vagina. The whole can is inserted. Haidl penetrates her vagina again with the Snapple bottle. Her right leg slides up, but there's no other reaction. Haidl and Nachreiner alternate inserting using the foreign objects. Spann and Nachreiner pinch and pull Doe's nipples. No reaction from the girl. The filtered end of a lit cigarette is inserted and left in a motionless Doe's vagina.

2:06:09

Fisk Claim: Doe slid her body toward the defendants, implying she wanted further sex.

Context: While he's pinching her nipples and moving happily to the rap music, Nachreiner repeatedly pokes Doe's vagina with the fat end of a pool cue. Her right leg moves slightly, but it's impossible to tell if the movement is voluntary because Haidl is simultaneously moving the camera. Spann dances to the music. Haidl films Doe's vagina, comes from behind the camera, dances, and slaps her vagina three times as the pool cue goes in and out. One of the defendants asks, "How deep does it get?" Spann and Haidl place their hands on Doe's lower abdomen to feel the depth of the pool cue.

2:07:58

Fisk Claim: Doe rolled over and therefore must have had "sufficient control of her body."

Context: Doe's legs have been spread wide open. Haidl shows another close-up face shot of Doe. She looks knocked-out. Nachreiner is still penetrating Doe with the pool cue. Her left arm lifts weakly and immediately falls off the pool table. Haidl turns her over. Doe is facedown on the pool table. Haidl uses both hands to hold open Doe's buttocks and then shoots a close-up of the penetration as he slaps her buttocks hard. Nachreiner continues to plunge the pool cue into Doe's anus. Her left leg is hanging half off the table. Nachreiner takes the pool cue out of Doe's anus and begins shoving it in and out of Doe's vagina. Doe doesn't move but begins to urinate on herself and the pool table. The defendants start laughing and one yells, "Fuck that!" Doe's body has been shoved so much that she's hanging partly off the pool table. It looks as if Doe might fall to the floor. Filming stops.

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